UK: Social Media: Anti-Social, Criminal But Also Tolerable

Where once news was obtained from the inky-print of hard copy newspapers and from cracking RP voices over the wireless, today social media is the voice that seems to shout the loudest. And in shouting loudly, or quietly, on social media, those who abuse it and infringe the rights of others may well be acting unlawfully. But when does a tweet become a criminal offence, or a blog merit a spell in prison?

Back in 2013, the then Director of Public Prosecutions grappled with the thorny issue in guidance issued to prosecutors. Taking up where he left off, yesterday, new social media guidelines came into force for prosecutors. The guidelines are intended, they say, to 'ensure that there is a consistency of approach across the CPS' for charging or for early advice to the police.

Two stage test

There is a relatively straightforward, but nonetheless essential, two stage test for starting a prosecution: 'prosecutors may only start a prosecution if a case satisfies the test set out in the Code for Crown Prosecutors. This test has two stages; the first is the requirement of evidential sufficiency and the second involves consideration of the public interest'. Both are important in cases of social media, where evidence may be limited and where, no matter the 'in principle' fact of an offence, the public interest in pursuing a prosecution is not made out. This is of particular importance when weighing the rights of the individual potential victim against the valuable right of free speech.

Categories of communications

There are four categories of communications:

Category 1: communications which may constitute credible threats of violence or damage to property;
Category 2: communications which specifically target an individual and which may constitute harassment, stalking, controlling or coercive behaviour, revenge porn, an offence under the Sexual Offences Act 2003 or blackmail;
Category 3: communications which may amount to a breach of a court order;
Category 4: communications which may be considered grossly offensive, indecent, obscene or false.

Categories 1 to 4 should be prosecuted 'robustly', while there is a 'high threshold' for prosecution with respect to category 4 and where 'in many cases' the guidance says, 'a prosecution is unlikely to be in the public interest'. It seems therefore, that in the interests of free speech, we should all have thick social media skins when it comes to being offended online.

Coercive behaviour

Care is taken to seek to protect those who are subject to controlling or coercive behaviour. With apologies to those who don't listen to (what?!) or who have had enough of The Archers, take our now happily released Helen Titchener (née Archer). Had evil hubby Rob practised his dark arts of abuse on Helen via social media, rather than in the confines of the marital home, and the CPS would have given consideration to these guidelines when considering whether to prosecute.

Children and revenge porn

Another important point is made with regard to revenge porn. Anathema to most adults (some sports stars and celebrities aside) sending or taking photos of ones genitals is an apparent hobby of the younger generation. But it goes wrong (if it were ever right) when the pictures land in the wrong hands, and where young victims are threatened, bullied or humiliated as a result. Our youngsters need to be protected, it appears, from no one more than themselves. But is the hammer of criminal prosecution and the burden that will leave on a young life too heavy an instrument to deal with this nutty phenomena? The guidelines suggests so: 'One factor that may warrant particular consideration is the involvement of younger or immature perpetrators. Children may not appreciate the potential harm and seriousness of their communications and as such the age and maturity of suspects should be given significant weight, particularly if they are under the age of 18′.

Causing offence

We can all be offended by what is written on social media. And as the US election campaign is illustrating over and again, what one of us may find grossly offensive, another may find tolerable, even vote-worthy. Various decisions have had to deal with this difficult issue, the courts considering, for example, that what they need to assess is whether the language used 'is beyond the pale of what is tolerable in our society' (DPP v Collins [2006]). Free speech is valued in our democracy; even where it can offend some of us. We do not all have the same tastes, the same proclivities, the same sense of humour. So the guidance makes clear that online, 'banter, jokes and offensive comments are commonplace and often spontaneous'.

Public interest

The guidance recognises that there is potential for 'a chilling effect on free speech' with online prosecutions. Regard should be had when considering the public interest argument in prosecution, to the harm caused to the victim, to the age and maturity of the perpetrator, to expressions of genuine remorse, swift remedial action taken, intention and mistake.

How the guidelines will be interpreted – and how consistently – will be watched by online addicts, bloggers, commentators, parents and lawyers. Serious online issues will presumably face the full force of the law. But it seems that in an online world, where 'access is ubiquitous and spontaneous', we may have to turn an online cheek or take offensive online humour with a pinch of salt.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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